Arun Kumar Bej …. … v. The State of Jharkhand through the Principal Secretary, School Education and Literacy, Ranchi. The
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P.(S) No. 5628 of 2021 Arun Kumar Bej …. …. Petitioner 1. 2. 3. 4. 5. 6. Versus The State of Jharkhand through the Principal Secretary, School Education and Literacy, Ranchi. The Director, Primary Education, Govt. of Jharkhand, Ranchi. The District Superintendent of Education, Saraikella-Kharsawan. The Block Education Extension Officer cum Drawing and Disbursing Officer, Middle School Krishnapur, Gamaharia, Saraikella-Kharsawan. The Accountant General, Ranchi. The Treasury Officer, Saraikella-Kharsawan. …. … Respondents
Legal Reasoning
------ CORAM : HON’BLE DR. JUSTICE S.N. PATHAK ------ : : Mr. Ashok Kumar, AAG-IV ------ For the Petitioner For the Resp-State Mr. Md. Faiyaj Alam, Advocate 7/ 22.10.2024 Heard the parties. 2. The petitioner has approached this Court with a prayer for quashing of the letter contained in memo no. 548 dated 04.10.2021 issued by the respondent no. 4, whereby an order of recovery of Rs. 4,83,822/- against the excess payment made under the heading of house rent allowance and transport allowance from the gratuity amount payable to the petitioner has been issued. The petitioner has prayed for making payment of entire retiral dues including full gratuity. 3. The brief facts of the case are that the petitioner was appointed on 04.10.1994 as Assistant Teacher in Middle School, Hudu, Saraikela-Kharsawan. It is specific case of the petitioner that he has been paid house rent and transporting allowance as per the circular issued by the Government. The petitioner retired on 30.06.2021 from the post of Assistant Teacher, Upgraded Middle School, Burudih, Gamharia, Saraikella-Kharsawan, but till date, he has been paid the amount payable under group insurance and leave encashment only. The respondent no. 4 issued a letter on 5.4.2021 to the effect that the petitioner has been paid excess amount towards house rent allowance and transport allowance to the tune of Rs. 4,53,000/- and hence, recommendation was made for recovery of the said excess amount from the gratuity of the petitioner vide letter dated 04.10.2021. 1 4. Learned counsel appearing for the petitioner submits that the impugned order of recovery is not tenable in the eyes of law on the simple ground that no recovery can be made from the gratuity, if the excess payment, so paid was not on account of his misrepresentation. Admittedly, there is no misrepresentation on the part of the petitioner in getting the house rent and transport allowances. To strengthen his arguments that the order of recovery are not justified, he refers the judgments rendered in the cases of State of Punjab vs. Rafiq Masih (whitewasher) & Ors., reported in (2015) 4 SCC 334. 5. On the other hand, learned counsel representing the respondent- State submits that indisputably the said amount was paid in excess and as such, liberty was there with the respondents to adjust / recover the amount, if any amount was paid in excess to the employee. Justifying the impugned order, learned counsel submits that there is no illegality therein. 6. Having heard the rival contentions of the learned counsel for the parties and upon perusal of the records, this Court is of the considered view that the case of the petitioner needs consideration for the following facts and reasons:- (i) Admittedly, the petitioner retired from the post of Assistant Teacher on 30.06.2021. The post of Assistant Teacher is a Class-III post. The impugned letter was issued on 04.10.2021 i.e. after the retirement of the petitioner, which led to non-payment of gratuity (ii) Law is well settled that before recovery, an adequate opportunity must be provided to the employee concerned. In the present case, no opportunity was ever provided to the petitioner before passing the order of recovery, as is well evident from the pleadings of the parties. (iii) The issue regarding recovery from retiral-cum-pensionery benefits is no more res integra. The same has been set at rest in view of the celebrated judgment in the case of State of Punjab & Ors. Vs. Rafiq Masih (White Washer) & Ors. (supra). The Hon’ble Apex Court, taking into consideration its earlier judicial pronouncements and legal provisions, in the cases of Shyam Babu Verma & Ors. Vs. Union of India & Ors, reported in (1994) 2 SCC 521, Syed Abdul Qadir Vs. State of Bihar & Ors., reported in (2009) 3 SCC 475, and Chandi Prasad Uniyal and Ors 2 vs. State of Uttarakhand and Ors., reported in (2012) 8 SCC 417, has observed in paragraph-18 in the case of State of Punjab & Ors. Vs. Rafiq Masih (White Washer) & Ors. (supra), which reads as under:- “18. It is not possible to postulate all situations of hardship, which would govern employees on the issue of recovery, where payments have mistakenly been made by the employer, in excess of their entitlement. Be that as it may, based on the decisions referred to herein above, we may, as a ready reference, summarise the following few situations, wherein recoveries by the employers, would be impermissible in law: (i) Recovery from employees belonging to Class-III and Class-IV service (or Group 'C' and Group 'D' service). (ii) Recovery from retired employees, or employees who are due to retire within one year, of the order of recovery. (iii) Recovery from employees, when the excess payment has been made for a period in excess of five years, before the order of recovery is issued. (iv) Recovery in cases where an employee has wrongfully been required to discharge duties of a higher post, and has been paid accordingly, even though he should have rightfully been required to work against an inferior post. (v) In any other case, where the Court arrives at the conclusion, that recovery if made from the employee, would be iniquitous or harsh or arbitrary to such an extent, as would far outweigh the equitable balance of the employer's right to recover.” (iii) Further the Hon’ble Apex Court in the case of High Court of Punjab and Haryana & Ors. Vs. Jagdev Singh, reported in (2006) 14 SCC 267 held that before any order of recovery is passed, it is incumbent upon the employer to put the employee on notice. Admittedly, in the present case, no notice was ever given to the present petitioner. (v) The contention of the learned counsel for the respondents that the recovery is fully justified is not tenable in view of the law laid down by the Hon’ble Apex Court. No doubt true that the amount of gratuity is always a part of retirement benefits. If some excess amount has been paid to the employee, who was working on Grade-III, the same cannot be recovered after retirement. For recovery, from retirement benefits, the procedures have to be adopted. In the instant case, no procedure has been adopted for recovery of the amount under the Pension Rules and as such, the order of recovery cannot be justified and the same is bad in the eyes of law. 7. In view of the aforesaid discussions, the letter contained in Memo No. 548 dated 04.10.2021 issued by respondent no. 3, by which a total amount 3 of Rs. 4,83,822/- has been recommended to be recovered, is hereby quashed and set aside. The respondents are directed to extend the entire amount of gratuity and if any amount is recovered, the same shall be refunded to the petitioner, at the earliest, preferably within a period of eight weeks from the date of receipt / production of a copy of this order. 8. With the aforesaid observations and directions, this writ petition stands allowed. Rohit (Dr. S. N. Pathak, J.) 4